Two weeks before trial, retained counsel appeared.
Id. The district court allowed the
substitution after receiving commitments to proceed on an agreed-upon trial
date. Id. Nonetheless, on the first
day of trial, counsel filed an emergency motion to continue, explaining they
were not prepared. Id. at *3.

The court agreed to continue if counsel agreed to pay witness and
jury fees. Id.Defense counsel
worried that this might get reported to the California State Bar, so agreed to
proceed to trial. Id.

On appeal, Walter-Eze chronicled defense counsel’s
failure to review government exhibits, failure to prepare jury instructions,
complete a PowerPoint presentation in time for closing, failure to secure
attendance of defense witnesses, or give the government a timely list of
witnesses or experts. Id. at *10.

Walter-Eze
was convicted and sentenced to ninety-seven months. Id.

Issue(s): “Walter-Eze raises challenges to her conviction . .
. [on the ground that] a conflict of interest created by the district court
when it conditioned an adjournment on counsel’s paying jury costs and witness
fees violated her Sixth Amendment right to counsel.” Id. at *2.

Held:“[F]or the
purposes of Sullivan’s presumption of
prejudice, we hold that under the circumstances present here, both the threat
of fees and the threat of potential sanctions created a conflict of interest
that adversely affected counsel’s performance.” Id. at *6.

“In this case, the
conflict was concretely manifest in real time, as Darden was called upon to
choose between being fined and potentially facing a bar investigation or going
to trial even though he and his co-counsel repeatedly indicated on the record
that they were unprepared. For this reason, the government is wrong to assert
that Darden was faced with only a ‘possible’ conflict. In fact, the existence
and impact of the conflict could not have been clearer.” Id. at *7.

“[U]nder the facts of
this case, Walter-Eze must show that she was prejudiced by this actual conflict,
and because she is unable to do so, we do not disturb the verdict.” Id. at *8.

Of Note: In the 1980 Sullivan decision,
the Supreme Court presumed prejudice when defense counsel had an actualconflict – thereby avoiding the prejudice requirements of “normal” Strickland challenges. The real issue in Walter-Eze is whether the Ninth will presume
prejudice after it finds an “actual conflict” on these particular facts.

In an important (albeit
confusing) holding, DJ Amon relies on the 2002 Mickens Supreme Court decision and concludes that – despite a clear finding of an “actual
conflict” – prejudice will not be
presumed in this case. Id. at *5.

Judge Nguyen doesn’t understand this
analysis: in her concurrence, she questions how the majority finds an actual conflict that does not trigger
the presumption of prejudice. Id. at
*18.

Practically speaking, the Walter-Eze decision may effectively
limit “presumed prejudice” to cases where defense counsel represents multiple
clients in the same case. However, as Judge Nguyen complains, this outcome is a
fact-entangled “rule” that seems ripe for further exploration.

How to Use:
Whatever its shortcomings, Walter-Eze
is an exhaustive discussion of conflicts. Id.
at *5 -*7. Conflicts are a fuzzy field – at a minimum, the opinion is a helpful
compilation of authority.

For Further
Reading: Can you avoid a Ninth Circuit
decision, just because mandate has been stayed? No – and neither can judges. As
the Ninth just concluded, “Notwithstanding this high threshold, petitioners
have demonstrated that the judges within the District of Arizona who found that
Sanchez-Gomez was not binding on them
committed clear error.” See Ord. here.